Bills Digest no. 8 2008–09

Migration Legislation Amendment Bill (No.1) 2008

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The purpose of
the Bill is to clarify and improve the effectiveness of Migration
and Citizenship legislation by addressing and rectifying a range of
problems related to judicial and merits review, border protection,
visa integrity, Australian citizenship, and other miscellaneous
matters.

Those provisions of Schedule
1 of the Bill relating to the executive structure of the
Migration Review Tribunal (MRT) were previously introduced in
Migration Legislation Amendment Bill (No.1) 2002 (the 2002
Bill). The 2002 Bill was introduced to the House of Representatives
on 13 March 2002. It was subsequently referred to the Senate Legal
and Constitutional Affairs Legislation Committee on 20 March 2002,
which tabled its
report on 18 June 2002. On 5 February 2003, the 2002 Bill was
introduced to the Senate but then lapsed.[1] This Digest has been prepared using
some of the information contained in the Bills
Digest prepared in respect of the 2002 proposed
reforms.[2]

Similarly, schedule 3 of the
Bill reintroduces identical provisions previously contained in the
Migration Amendment (Visa Integrity) Bill 2006 (the 2006 Bill).
The 2006 Bill had re-introduced select, though not identical
provisions from the 2002 Bill. The 2006 Bill was introduced to the
Senate on 21 June 2006. It was subsequently referred to the Senate
Legal and Constitutional Affairs Legislation Committee on 9 August
2006, which tabled its
report on 11 September 2006. The second reading of the 2006
Bill was adjourned and the 2006 Bill subsequently lapsed. This
Digest has been prepared using information contained in the
Bills Digest prepared in respect of the 2006 proposed
reforms.[3]

This Bill proposes to make a large number of
mostly technical amendments, some of which were unsuccessfully
introduced by the former coalition government, and some of which
are newly drafted amendments by the current government.

On 26 June 2008, the Senate Selection of Bills
Committee recommended that the Bill not be referred to
Committee.[4] The
Senate Legal and Constitutional Affairs Legislation Committee s
reports of the 2002 and 2006 Bills are the most recently available
committee material published on the proposed amendments.

According to the Explanatory Memorandum,
amendments in Schedules 1, 3, and 4 will have a minimal financial
impact while the amendments in Schedule 5 are expected to have no
financial impact. Amendments in Part 3 of Schedule 2 (round trip
cruises and ship reporting time frames) are expected to result in
minimal costs to the Commonwealth, which will be absorbed through
existing funding arrangements .[5] The Explanatory Memorandum also states the
expected revenue gains as a result of the amendments to Schedule 2
to be 4.5 million in 2009-10 and 2.3 million in 2010-11.[6]

Items 1-5 and 14-18 of Schedule
1 amend the Migration Act 1958 (the Migration
Act) to create and empower the office of Deputy Principal Member of
the MRT interposed between the Principal Member and the Senior
Members. Although the Migration Act provides that the Refugee
Review Tribunal (RRT) will consist of members, including a Deputy
Principal Member,[7]
there is currently no provision providing the same for the MRT. As
the MRT and RRT operate administratively as one single agency, and
members are cross appointed to both Tribunals, it is anomalous for
the position of Deputy Principal Member to exist in one Tribunal
but not the other .[8]

Though the proposed amendments will, in
effect, align the executive structure of the Tribunals, they do not
create uniformity in the manner in which their powers are
exercised, due largely to existing differences in the way the
Tribunals operate. By way of example:

proposed subsections 354(2) and
(3) will enable the Deputy Principal Member (in addition
to the Principal Member and Senior Members of the MRT) to give
written directions about who is to constitute the Tribunal for the
purposes of a particular review.[9] However, such directions in the RRT may only be
made by its Principal Member.[10]

the insertion of proposedsubsection
357(2A) relating to the process to determine who will
preside over a hearing when two or three Members have been
constituted for the purposes of a review, has no equivalency for
the RRT, as its powers are exercised by a single member
only,[11] and

proposed paragraph 458(1)(b) and
proposed subsection 459(1A) relating to the membership and
appointment of RRT Members will create a discretion (where
previously there was none) as to whether the RRT s office of Deputy
Principal Member is filled, in keeping with the discretionary
appointment of such a person for the MRT in proposed
paragraph 395(a) and proposed subsection 396(1A).

Items 6-9 of Schedule 1 will
abolish the handing down procedure for the MRT, while items
19-22 of Schedule 1 will abolish it for the RRT.
The current procedure (in the context of the MRT) is outlined in
the Explanatory Memorandum,

In general terms, the current process requires
the MRT to invite a review applicant and the Secretary to be
present when a decision is to be handed down (although there is no
requirement for them to attend) and the Principal Member or other
authorised person by the Principal Member, conducts the handing
down by reading the outcome of the decision. The date of the
decision is the date the decision is handed down. If the applicant
or their representative is not present at the handing down, the
Tribunal must notify the applicant by giving them a copy of the
written statement prepared under subsection 368(1), within 14 days
after the day on which the decision is handed down. Section 368C
provides in effect that applicants are taken to be notified of a
decision when their representatives are notified of the
decision.[12]

A background paper on proposed amendments to
the Migration Act, issued by the then Department of Immigration and
Multicultural Affairs in 2006 reportedly stated that the handing
down process was administratively costly with no apparent benefit
to the applicant. It apparently further noted that since the
commencement of the procedure, only about 22% of review applicants
had attended the handing down of their decisions.[13]

Items 7 and
20 provide that the Tribunals will be required to
notify an applicant of a decision (other than an oral decision) by
giving the applicant and the Secretary a copy of the decision
within 14 days after the day on which the decision is taken to have
been made.[14]Items 6 and 19 provide that a
decision (other than an oral decision) is taken to have been made
on the date of the decision.[15] This new formulation largely reflects the
notification procedure that currently applies to persons in
immigration detention.[16]Items 9 and 22 will repeal
existing subsections 368D(2) and 430D(2) which
provided different notification procedures for such persons. Under
the proposed amendment, notification of all decisions
(other than those given orally) will now simply be governed by
proposed subsections 368A and 430A.

According to the second reading speech, the
proposed new method for notifying parties of a Tribunal decision
will be simpler and thereby reduce the risk of administrative
error[17] which
suggests that the handing down procedure which was introduced in
1999 to create certainty of dispatch ,[18] has not, in retrospect, achieved its
intended purpose.

The point at which the Tribunals cease to have
power to reconsider or reopen a case that has been finalised has
been the subject of considerable judicial consideration and it is
perhaps this issue that the proposed amendments seek to remedy and
put beyond doubt.[19] The issue has most frequently
arisen in the context of the RRT when an applicant has sought to
submit additional material for consideration after a decision has
been signed but before it has been handed down. Some believe that
such a situation has arisen from the unfortunate propensity of the
Refugee Review Tribunal to hand down a decision long after the
member signs it .[20]

The removal of the handing down procedure may
resolve some of the uncertainty surrounding the point at which the
Tribunals powers are spent, though delays in actual dispatch may
nonetheless result in the continued practice whereby applicants
seek to submit additional (and perhaps more up-to-date) information
for consideration following the dating of the decision.

The Bill introduces new more relaxed dispatch
requirements. For instance, though the Bill provides that dispatch
of a decision (not given orally) must occur within 14 days after
the day on which it is made, if the Tribunals do not comply, such a
failure will not invalidate the decision.[21] This is a marked departure from
the existing statutory scheme, failure to comply with which may
have resulted in the Tribunal decision being invalidated. Delayed
notification may affect review applicants ability to meet the new
time period in which to lodge an application for judicial review
(35 days). This shifts the onus on to applicants to provide the
Courts with written reasons why they should be granted an extension
in which to apply - arguably adding to the already sizeable
migration caseload of the Courts.

Notwithstanding, the Administrative Review
Council (ARC) notes that the abolition of the handing down
procedure would not only bring the Migration Act into line with the
statutory provisions for the Administrative Appeals Tribunal, the
Veterans Review Board and the Social Security Appeals Tribunal
(which do not require decisions to be formally handed down), it
would also create administrative efficiencies. However, they note
that the proposed amendments would also effectively reduce the
amount of time currently available to applicants to present all
relevant material to the Tribunals .[22] Consequently, they have urged that in
considering the amendments to the Migration Act, careful
consideration is given to ensure that those seeking to present new
information to the Tribunals have sufficient opportunity to do so
prior to finalisation.[23]

Proposed subsections 379EA
and 441EA provide that when two or more persons
apply together to the Tribunals to have a decision reviewed, the
Tribunal will not be required to give each person a copy of the
documents. Instead these proposed provisions will enable the
Tribunals to give the documents to only one of the review
applicants, and any others will be deemed to have received
the documents. According to the Explanatory Memorandum, this will
bring the Tribunals communication procedures into line with that of
the Department of Immigration and Citizenship (DIAC) (as outlined
in section 52(3C)).[24]

Though this proposed amendment will
undoubtedly create administrative efficiency, it may nonetheless
result in the effective denial of procedural fairness to some
review applicants if, during the period of review (which can often
involve a substantial period of time), there is a breakdown in
relations resulting in review applicants not residing at the same
residential address and not communicating about correspondence
received from DIAC.

Items 30-36of
Schedule 1 of the Bill amend the time limits imposed on
applications for judicial review. Existing sections 477 (Federal
Magistrates Court), 477A (Federal Court) and 486A (High Court) of
the Migration Act are in a similar form and set out the time period
in which applications must be lodged. The current statutory
framework sets strict time frames and requires applications to be
lodged within 28 days of the actual (as opposed to deemed)
notification of the decision. The Courts may grant an extension of
another 56 days if such an order is sought within 84 days of actual
notification of the decision and the Courts consider it in the
interests of the administration of justice to do so.[25] The proposed
amendments arise from two court cases handed down in 2007.

The first judgment was Bodruddaza[26]
in which the High Court unanimously declared section 486A (time
limit on applications to the High Court for judicial review)
invalid on the basis that the provision was inconsistent with the
power of judicial review contained in section 75(v) of the
Constitution.[27]
In the majority s view, section 486A could not be read down or
severed to preserve any valid operation.[28]

In SZKKC[29] the full bench of the
Federal Court considered what is involved in the concept of
notification of the decision for the purposes of section 477.
Section 477 provides that the time period for initiating
proceedings in the Federal Magistrates Court commences when an
applicant is actually notified of the migration decision.
As noted in the Explanatory Memorandum, actual notification (as
opposed to deemed notification) creates uncertainty because it can
be difficult to ascertain when an applicant is actually
notified.

Most of the other relevant provisions in the
Migration Act dealing with notification[30] contain deeming provisions, that is,
irrespective of when an applicant is actually notified, the
applicant is taken or deemed to have been notified by
operation of the Migration Act. However, in their Honours view,
such deeming provisions were ineffective for the purposes of
section 477 due its designed operation. Though subsection 430D(2)
relating to notification of decisions where the applicant is in
immigration detention, also requires actual (as opposed to deemed)
notification, the High Court in WACB v Minister for Immigration
and Multicultural and Indigenous Affairs (2004) 210 ALR 190 (
WACB ) held that physical delivery was required in such
cases. Accordingly, the majority in SZKKC concluded that
for the purposes of section 477, the sole method of actual
notification is by physical delivery (by hand) to the applicant
personally.[31]

Such an interpretation stemmed from a
combination of the decision of WACB and the actual wording
of the section 477, the result of which left the Courts with no
room to manoeuvre and according to Justice Giles created an
absurdity in the operation of the legislation.[32] Significantly, Justice Buchanan
was of the view that the problem appeared in very large measure to
have been created by the introduction of the requirement for actual
(as opposed to deemed) notification in section 477 (and section
477A and section 486A) without much attention to how these
additional provisions would interact with the comprehensive and
interlocking arrangements already in place in Part 7 and also in
other Parts of the Migration Act.[33]

Items 30, 32 and 34 amend
existing sections 477, 477A and 486A by providing
that an application for review of a migration decision may be made
to the Courts within 35 days of the day on which the decision is
taken to have been made or such longer period as the Courts order.
Pursuant to proposed subsections 368(1) and
430(1), a decision will be taken to have been made on the
date of the written statement.

Proposed subsections 477(2)-(4), 477A
(2)-(4) and 486(1A)-(3) provide that an application may be
made in writing to have the 35 day period extended. Such an
application must explain why the extension is necessary and why it
is in the interests of the administration of justice that it be
granted. The Court may then grant an extension of time for a period
that it considers appropriate. According to the Explanatory
Memorandum, vesting the Courts with such a broad discretion will
protect applicants from possible injustice.[34]

In Plaintiff S157/2002 v Commonwealth
[2003] 211 CLR 476 ( Plaintiff S157 ) Callinan J stated
that he did not doubt that the Commonwealth has the power to
prescribe time limits on the High Court in relation to the remedies
available under section 75 of the Constitution but [those] time
limits must be truly regulatory in nature and not such as to make
any constitutional right of recourse virtually illusory .[35] In his Honour s view,
35 days accompanied by a power to extend time might perhaps
lawfully be prescribed.[36]

Though the proposed amendments will reinstate
effective and uniform time limits for applying for judicial review
of migration decisions [37] by re-introducing deemed (as opposed to actual)
notification, the proposed amendments may also possibly increase
applications to the Courts to use their discretion to allow
judicial review outside the prescribed time period which may
consequentially not only increase the Courts migration caseload but
also exacerbate existing delays in the judicial review process.

Item 41 of Schedule 1
outlines the transitional arrangements for applicants who have
received their Tribunal decision but have not initiated proceedings
in the Courts prior to the commencement of the amendments.

Special purpose visas are a discrete category
of visa which enable prescribed persons or classes of persons to
enter Australia. They are distinguishable from other visas as they
do not require individual visa applications or determinations. In a
sense, they are not so much visas as an open permission for a
specified category of persons to enter Australia for a given
purpose.[38] The
classes of prescribed persons to date have included, for example,
members of the British royal party, military personnel, airline
crew members, and Indonesian traditional fishermen.[39]

Special purpose visas were introduced in 1994
to clarify the status of persons currently exempt from the
requirement to hold an entry permit to enter and remain in
Australia . They were intended to provide lawful status for
non-citizens who are presently exempt non-citizens to be held when,
and for as long as, a non-citizen continues to be present in
Australia for a specified purpose .[40] However, the Minister has power to
exclude certain persons or classes of person from access to special
purpose visas. Subsection 33(9) of the Migration Act allows the
Minister to make a determination that it is undesirable that a
person or persons within a class enter or remain in
Australia.[41]

Item 1 of Schedule 2 amends
existing subsection 33(5) of the Migration Act in relation to the
point at which a special purpose visa ceases to be in effect.
Currently, a special purpose visa expires at the end of a
day which means that migration officers must wait until the
end of the day before any action can be taken whereas under the
proposed amendment, the visa may also cease to be in effect at a
specified time. A special purpose visa may cease at a particular
time where a declaration under subsection 33(9) is expressed to
take effect at a specified time.[42]

Items 2 and 3 of Schedule 2
insert the words the end of the day to existing subparagraphs
33(5)(a)(i) and (ii) and 33(b)(i) to (iv) to preserve the effect of
old subsection 33(5) for cases where the special purpose visa was
intended to cease on a particular day.

Items 4-8 of Schedule 2 make
minor amendments to existing subsections 64ACA, 64ACB, and 64ACC of
the Customs Act 1901 relating to general reporting
requirements. The proposed amendments clarify that the obligation
on the operator of a ship or aircraft to provide reports on
passengers and crew members who will be on board their aircraft or
vessel upon arrival to the Australian Customs Service (ACS) is a
requirement to report on them individually (on each
passenger and each member of the crew) not on them generally.

Items 12-13 similarly
clarifies that for the purposes of existing subsection 245L(2) of
the Migration Act, the requirement that operators of ships and
aircrafts report on passengers and crew, is a requirement to report
on them individually.[43]

Item 14 repeals existing
subsection 245L(5) and substitutes proposedsubsections 245L(5) and (5A) which relate to the
time for reporting on passengers or crews on a ship. The amendment
provides that the time frame in which to report will be prescribed
in the Regulations.[44]

Item 17 inserts
proposed paragraph 504(1)(jaa) which enables a
person who is alleged to have committed an offence against
subsection 245N(2) ( Offence for failure to comply with reporting
obligation ) to pay the Commonwealth, as an alternative to
prosecution, a prescribed penalty not exceeding 10 penalty units
($1100).[45] The
second reading speech notes that this regime is expected to be less
costly to administer and easier to implement .[46]

Item 19 of Schedule 2 amends
the Migration Act by inserting proposed subsections
169(2)-(5) which provide that passengers aboard
international passenger cruise ships [47] on round-trip cruises are required to
undergo immigration clearance (as set out in section 166) unless
the Minister or Secretary of the Department of Immigration
determine otherwise. Proposed subsection 169(5)
provides that such a determination is a legislative
instrument.[48]

Items 21-22 of Schedule 2
incorporates enforcement visas[49] as a class of visa listed
in existing subsection 31(2) of the Migration Act. According to the
Explanatory Memorandum, the failure to list section 38A
(enforcement visas) in section 31(2) as a class of visa provided
for in the Migration Act, was an oversight.[50]

The Migration Act draws a distinction between
entry and immigration clearance , and between lawful non-citizens
and immigration cleared non-citizens. A person enters Australia if
they enter the migration zone .[51] A person is immigration cleared if they enter
Australia at a port or prescribed place, provide evidence of their
identity and visa, and leave with permission of a clearance officer
(except to be in immigration detention). A person is also
immigration cleared if they are initially refused or bypass
immigration clearance, but are subsequently granted a
substantive visa under subsection 172(1)). Similarly, a lawful
non-citizen is a non-citizen in the migration zone who holds a
valid visa.[52] An immigration cleared non-citizen is a non-citizen in
the migration zone who has been immigration
cleared.[53]

A non-citizen child who is born in the
migration zone is taken to have entered Australia when s/he was
born.[54] These
children are taken to hold a visa on a similar basis as their
parents.[55]
However, there is currently no provision clarifying the immigration
clearance status of non-citizen children who were born in
Australia. This Bill seeks to address that omission.

Immigration clearance is of importance for a
number of reasons:

It affects a non-citizen s access to visas under the Migration
Regulations,[56]
especially bridging visas;

It affects immigration detention. An unlawful non-citizen, that
is a non-citizen in the migration zone without a visa, must be
detained.[57] A
lawful non-citizen may be detained if they hold a visa that may be
cancelled. An immigration cleared non-citizen may only be detained
if they are likely to attempt to evade or otherwise not cooperate
with immigration officers;[58]

It affects access to visas in relation to safe third country
rules. If a non-citizen is covered by an agreement between
Australia and a safe third country , their access to visas will be
substantially diminished.[59] If they have been immigration cleared, they are
prevented from applying for protection visas. However, if they have
not been cleared they may not apply for any visa. Similar
restrictions on access to visas apply if a non-citizen is a
national of two or more countries or has a right of entry into a
declared safe third country;[60]

It affects cancellation of visas. The general power to cancel
visas - for example, because of non-compliance with visa conditions
- does not apply to permanent visas if the visa holder is in the
migration zone and has been immigration cleared;[61] and

It also affects review rights. Generally, the MRT may not
review a decision to refuse to grant or to cancel an onshore visa
if that decision was made before the person was immigration
cleared.[62]

Item 1 inserts
proposed paragraph 172(1)(ba), which provides that
a non-citizen child who is born in Australia is immigration cleared
if, at the time of his or her birth, at least one of the child s
parents was immigration cleared on their last entry into
Australia.

There are two limitations to this change. The
proposed change only applies to non-citizen children on their
birth entry to Australia, and does not provide immigration
clearance for any subsequent entry to Australia .[63] Second, the exemption only
applies to children who are born to parents one of which has
been immigration cleared.

In its 2002 submission to the Senate Legal and
Constitutional Legislation Committee, the International Commission
of Jurists (Australian Section) raised the issue of children who
are born to parents who become immigration cleared at a later
date:

We suggest that there needs to be an amendment
following 172(c). This would provide immigration clearance for
children who were born to parents who bypassed clearance who were
subsequently granted a substantive visa. Under the current
legislation, a child born to a person who arrived as a stowaway, or
on a false document, and was later granted a substantive visa, is
not immigration cleared. The child is not covered by the visa if
he/she was born prior to the date of the visa.[64]

This suggestion was not taken up by the Senate
Committee in its 2002 recommendations[65] and none of the provisions of this
Bill would remedy this situation.

Item 2 of Schedule 3 states
that the amendment made by item 1, applies only to a non-citizen
child who was born in Australia on or after 1 September
1994. The Explanatory Memorandum states that this date
corresponds with the introduction of the concept of immigration
clearance into the Migration Act by the Migration Reform Act
1992 .[66]

Children born in Australia protected by parents
visa(s)

Item 5of Schedule
3 inserts proposed subsection 173(2) into
the Migration Act to address an anomaly between the notion of birth
entry and the requirement to enter via a port.

As noted above, a non-citizen child who is
born in Australia is taken to hold a visa on a similar basis as his
or her parents.[67]
However, strictly speaking, a visa holder usually enters Australia
at a port or on a pre-cleared flight. Entry which fails to comply
with these requirements invalidates the visa.[68] In other words, birth entry of a
non-citizen child technically seems to be an entry that offends
section 43 of the Migration Act.[69]

Proposed subsection 173(2)
states that these non-citizen children are not to be taken, by
virtue of that birth, to have entered Australia in a way that
contravenes section 43 of the Migration Act.

Item 6 of Schedule 3 states
that the amendment made by Item 5, applies only to
a non-citizen child who was born in Australia on or after 1
September 1994, and who is taken to have been granted a
visa or visas under section 78 of the Migration Act. This date
corresponds to the date when the concept of immigration clearance
was introduced into the Migration Act by the Migration Reform
Act 1992 which commenced in 1994.[70]

The Migration Act contains various offences
relating to the unlawful entry of non-citizens into Australia.
Whilst it is not an offence for a non-citizen to arrive in
Australia without a visa, it is an offence for a person to
be involved in bringing such non-citizens to Australia.

There is a lack of clarity in relation to the
evidential burden in relation to exemptions to some of these
offences.

Absolute liability as set out by
section 6.2 of the Criminal Code Act 1995 means that (a)
there are no fault elements for any of the physical elements of the
offence; and (b) the defence of mistake of fact under section 9.2
is unavailable.

Strict liability under section 6.1 of
the Criminal Code sets out that (a) there are no fault elements for
any of the physical elements of the offence; but (b) the defence of
mistake of fact under section 9.2 is available. All other
defences apply to both strict and absolute liability offences.

Subsection 229(1) of the
Migration Act makes it an offence for the carriers of non-citizens
defined as the master, owner, agent, charterer and operator of a
vessel - to bring a non-citizen into Australia, unless any
one of the circumstances in existing paragraphs 229(1)(a)-(e)
applies. In sum, these circumstances are: the non-citizen holds a
valid visa, is eligible for a special purpose or special category
visa, or is covered by an exemption from the requirement to hold a
visa.[71] The
offence is one of absolute liability, subject to defences
established in subsection 229(5), which describe circumstances that
overlap considerably with the circumstances set out in paragraphs
229(1)(a)-(e). The onus of proof is on the defendant in respect of
establishing these defences.

The exemptions from the requirement to hold a
visa cover an inhabitant of the Protected Zone travelling to a
protected area in connection with traditional activities; New
Zealanders, Norfolk Islanders and certain compliance cases; and any
class of person covered by regulations.

The stated issue in relation to this offence
is whether the matters in paragraphs 229(1)(a) to (e) constitute
matters of exception or elements of the offence in subsection
229(1). [72] As
noted, guilt is imposed unless various circumstances
exist. This can be interpreted as imposing guilt on a defendant
unless s/he puts in evidence regarding those
circumstances. This evidential burden overlaps with the defences in
section 229 of the Migration Act. The Explanatory Memorandum to the
2006 Bill stated that this overlap and the very wide potential
operation of the offence, were unintended consequences.[73]

Items 7 and 8 of Schedule 3
clarify that the matters in paragraphs 229(1)(a)-(e) are matters of
the offence. Thus guilt is imposed 'if' the various
circumstances in paragraphs 229(1)(a)-(e) do not exist. This
removes the unintended consequences described above.

Item9 of Schedule
3 preserves the reversal of the onus of proof relating to
the exemptions in existing subsections 42(2)-(3) of the Migration
Act.

The defendant retains the evidential burden in
respect of the exemption from the requirement to hold a visa. As
the Explanatory Memorandum explains the defendant must adduce or
point to evidence that suggests a reasonable possibility that the
matters in subsections 42(2), (2A) or (3) exist .[74] If this is done, then the
prosecution must prove beyond reasonable doubt that these matters
do not exist.

Item 10 applies to a similar
absolute liability offence established by section 232 of
the Migration Act. This offence applies to the master, owner, agent
and charterer of a vessel, where a non-citizen has entered
Australia on the vessel without a valid visa, unless s/he is
covered by an exemption from the requirement to hold a
visa.[75] The
offence also applies where a non-citizen has left the vessel in
Australia (otherwise than in immigration detention) where s/he has
been placed on the vessel for removal or deportation from
Australia.

Proposed subsection 232(1B)
makes it clear that the evidential burden is on the defendant in
relation to establishing that one of the exemptions contained in
subsections 42(2) to (3) applies. The Explanatory Memorandum states
that this is consistent with subsection 13.3(3) of the Criminal
Code, which provides that a defendant bears an evidential
burden in relation to any matters of exception to an offence.
[76]

Items 11 and
12 apply to an offence established by section
232A, which makes it an offence to organise or facilitate bringing
a group of five or more non-citizens into Australia if they have no
lawful right to come to Australia. This is not an absolute
liability offence; the defendant must be reckless as to whether the
non-citizens had a lawful right to enter, in order for the offence
to be established. Again, the offence does not apply if the
non-citizen is covered by an exemption to the requirement to hold a
visa.[77]

Proposed subsection 232A(2)
makes it clear that the evidential burden is on the defendant in
relation to establishing that one of the exemptions applies. Again,
the Explanatory Memorandum states that this is consistent with
subsection 13.3(3) of the Criminal Code, which provides
that a defendant bears an evidential burden in relation to any
matters of exception to an offence. [78]

People smuggling offences in s 233(1)(a) strict
liability

Existing paragraph 233(1)(a) of the Migration
Act establishes another people smuggling offence, making it offence
to take any part in the bringing or coming to Australia of a
non-citizen under circumstances from which it might reasonably have
been inferred that the non-citizen intended to enter Australia in
contravention of this Act. The maximum penalty for contravening
this provision is imprisonment for 10 years or 1000 penalty units,
or both.

Item 13 of Schedule 3 inserts
proposed subsection 233(1A), to make it clear that
strict liability applies to this offence. The
Explanatory Memorandum to the 2006 Bill stated that this amendment
was necessary to restore the application of strict
liability to this offence.[79] The SLCL Committee s report noted:

The Law Institute of Victoria argued that it
was inappropriate for strict liability to apply to any element of
an offence which carried a penalty of 10 years in prison and/or a
fine of 1000 penalty units ($110 000).

DIMIA responded that the effect of section
233(1)(a) currently was to make it an offence for someone to
participate in the bringing or coming of a non-citizen into
Australia being reckless as to whether the non-citizen has a lawful
right to come to Australia. It said that the Director of Public
Prosecutions wrote to it in September 2001 saying that, because of
the application of the Criminal Code, the offence in section 233
had been altered. The courts had interpreted the offence in s 233
as being a strict liability offence, and this had not been picked
up in the harmonisation exercise that was undertaken the previous
year. The amendment would ensure that the provision operated in the
way it always had. It was being made a strict liability offence
again.[80]

Commenting on the more general policy question
of whether strict liability is appropriate where an offence carries
a heavy penalty of this kind, the SLCL Committee s report
continued:

DIMIA also referred to a number of provisions
in Commonwealth Acts which provided for elements of offences
punishable with imprisonment for 10 years or more to be subject to
strict (or absolute) liability. However, most of these related to
elements which might be seen as subsidiary

On the other hand, there are some offences
where (as is the case with s 233(1)(a)) the element to which strict
or absolute liability applies appears to be fundamental to the
criminality.

It appears that there are very few Commonwealth
offences where strict liability applies to a fundamental element.
However, as DIMIA pointed out, there is an objective element to the
offence, namely, the presence of circumstances from which it might
reasonably have been inferred that the non-citizen intended to
enter Australia in contravention of the Migration Act. There is no
such objective element in the strict/absolute liability offences
mentioned in paragraphs 2.17-2.18 above. The presence of this
objective element in an offence against s 233(1)(a) means that
substituting strict liability for recklessness will not greatly
reduce the burden on the prosecution .

The Committee notes concerns in respect of
strict liability raised in other reports of this Committee and of
the Scrutiny of Bills Committee. However, in this instance, the
change from recklessness to strict liability is justified in the
current context. Having regard to the above considerations and to
the fact that the maximum penalty had already been set at its
current level by the Migration Legislation Amendment Act No 1)
1999 on 22 July 1999 (i.e. before the Application of Criminal
Code Act took effect in 2001), the Committee is satisfied that the
maximum penalty for the offence is not unacceptably harsh.[81]

A different view on this matter was expressed
by (then) Australian Labor Party Senator Barney Cooney, in his
comments appended to the SLCL Committee s report:

The legislation attaches strict liability to
elements of offences set out in sections 233 and 241 of the
Migration Act 1958. These crimes carry a maximum penalty of 10
years. It is exceptional for strict liability to be assigned to
elements of offences as serious as these. However there is now a
trend for this to happen with Commonwealth legislation. This is
unacceptable and should be rejected. Most serious crime is dealt
with by State and Territory Parliaments and Governments and they
appear to be able to cope with it without resorting to strict
liability. The Federal Bodies seem to lack the same
ability.[82]

In his own appended comments, former
Australian Democrats Senator Andrew Bartlett expressed his support
for the conclusions and recommendations contained in the main
report of the SLCL Committee, but additionally stated that he
retained some concerns regarding the implications and potential
application of the amendments that introduce strict liability My
concern is that the penalty for such offences may in some
circumstances far outweigh what may be just and reasonable in the
circumstances .[83]

Other offences

Items 14 17 of Schedule 3
make amendments to existing subsections 268BJ(1) and 268CN(1) and
to section 268CM of the Migration Act in relation to compliance
with the requests of authorised officers.

Generally, an authorised officer may take
securities to ensure a person s compliance with any condition
imposed in pursuance of the Migration Act or Regulations.[84] If a person fails to
comply with a condition of a security, the full amount may be
recovered in a court against any or all of the parties or
subscribers to the security.[85]

While it is implied in section 269, the
provision is not specific as to the taking of securities
before visa applications are determined. The issue arose
in Tutugri v Minister for Immigration and Multicultural
Affairs [1999] FCA 1785 ( Tutugri ), specifically,
over the power of the MRT to take securities in respect of a
decision under review.

Justice Lee took the view that the power to
take securities was specific, flowing from a power to impose
conditions in the granting of a visa. The MRT's power to impose
conditions was not prospective: [t]he Tribunal was not empowered to
require the applicant to provide a deposit of cash in advance of
the grant of a visa and, therefore, before any condition had been
imposed on the visa granted . Neither was it retrospective: [i]f
the Tribunal made a decision to grant a visa its power would then
be spent [i.e. it would be functus officio] .[86]

Justice Lee's reasoning on the first question
was that [p]ersons providing security must know the terms of the
condition that is being secured and, therefore, what act, or
conduct, will amount to a failure to comply with the condition and
make the security liable to forfeiture .

In the Government s view this raises an issue
in relation to the primary decision maker:

In Tutugri the Federal Court raised
significant doubts about the power of an authorised officer to
request and take security for compliance with conditions to be
imposed on a visa before the visa is granted. This is because a
condition on a visa does not bind the applicant until the visa is
granted and a condition cannot be said to have been imposed prior
to grant.[87]

Proposed subsection 269(1A)
clarifies this matter. It provides that an authorised officer may
require and take securities before a visa is granted if it is for
compliance with conditions that will be imposed on the visa , and
s/he has indicated those conditions to the applicant .

It is worth noting that the
prospective/retrospective argument was not the only concern raised
by Justice Lee in Tutugri. He also noted the MRT s limited
role, drawing on a basic distinction between the status of a
primary decision maker and a merits review body:

The function of the Tribunal is to determine
whether the decision under review was the correct or preferable
decision. In carrying out that function the Tribunal may exercise
the powers and discretions conferred on the person who made the
decision, limited, however, to the purpose of the review.
That is not an authority to make a new and separate decision [Its
task] was to address the same question that was before the
decision-maker and not a distinct and separate question and [it]
was not able to make any decision an officer may have been
authorised to make under the Act.[88]

Taken together, these arguments suggest that
it is not appropriate for a tribunal vis- -vis an officer to impose
conditions or sanctions to ensure compliance with the visa regime.
Views may differ as to whether a tribunal can impose
sanctions that were not originally imposed by the original decision
maker. But, there is a policy question as to whether a tribunal
should be able to do so. The amendments do not seem to
answer this question.

Items 21-22 of Schedule 3
amend section 48 of the Migration Act which prohibits visa
applicants from lodging repeat applications (other than for certain
prescribed visas), after last entering Australia, in circumstances
where their application has been refused or cancelled. Subsection
48(2) currently provides that in certain situations, persons are to
be taken to have been continuously in the migration zone
(Australia) despite having left and returned to the country.
Proposed subsection 48(2) confirms that section 48
applies only in respect of applications made while a non-citizen is
in the migration zone . Proposed subsection 48(3)
provides that the holder of a bridging visa who leaves and later
returns to Australia is nevertheless taken to have been
continuously in the migration zone despite that travel. This
amendment will correct an anomaly in the Migration Act which
enables holders of a particular bridging visa to circumvent the
operation of section 48.[89]

Item 24 inserts
proposed subsection 82(7A) into the Migration Act
which makes it clear that a bridging visa permitting the visa
holder to remain in, or to travel to, enter and remain in Australia
until a specified event happens, ceases to be in effect the
moment the event happens, rather than at the end of the day on
which the event occurs.

Item 2 of Schedule 4 amends
subsection 193 of the Migration Act which sets out the application
of law to certain persons in immigration detention. Currently
paragraph 193(1)(d) of the Migration Act provides that sections 194
(detainee to be told of consequences of detention) and 195
(detainee may apply for visa) of the Migration Act do not apply to
a person in immigration detention who has held an enforcement visa
that is no longer valid and who has not been a lawful non-citizen
since it expired.

Under the proposed amendment, the right to be
told of the consequences of detention and to apply for a visa will
not apply to persons in immigration detention who have held an
enforcement visa that is no longer valid and have not been granted
a substantive visa (a visa other than a bridging visa,
criminal justice visa or an enforcement visa) since its
expiration.

Significantly, this amendment, when read in
conjunction with 198(2) of the Migration Act will also mean that
such persons must be removed as soon as reasonably practicable from
Australia. Under the current statutory framework, such persons
could not be removed if they had been granted a
non-substantive visa (such as a criminal justice visa or a
bridging visa) as the granting of such visas would render them
lawful.[90]

Item 4 of Schedule 4 changes
the means by which the Minister will communicate with visa
applicants by removing the mandatory requirement to communicate
through an authorised recipient in particular circumstances. An
authorised recipient is a person nominated by the visa applicant to
receive written communications from DIAC. Section 494D currently
requires the Department to send an authorised recipient any written
communication relating to the visa application that would otherwise
have been sent to the visa applicant.[91] In most circumstances, the visa
applicant will not also receive a separate copy of any
communication.

Proposed subsection 494D(5)
creates a discretion whether to communicate with a visa applicant s
authorised recipient if the authorised recipient is not a
registered migration agent ,[92] the Minister reasonably suspects that that the
authorised recipient is giving immigration assistance [93], and the visa
applicant has been notified (by one of the methods specified in
section 494B) that the Minister does not intend to give documents
to the authorised recipient.

Item 5 of Schedule 4 makes a
technical amendment by inserting proposed section
501HA into the Migration Act. This proposed amendment will
clarify that if a person held a visa or permit (under the Migration
Reform (Transitional Provisions) Regulations which commenced on 1
September 1994) that continues in effect as a transitional
(permanent) or transitional (temporary) visa, or is taken to hold a
transitional (permanent) visa, then for the purposes of sections
501 to 501H, such persons are taken to have been granted a
visa.

This amendment addresses comments by the
Federal Court in the decision of Moore v Minister for
Immigration and Citizenship [2007] FCA 626 ( Moore )
that cast doubt on whether a previous character cancellation
decision made under subsection 501(2) of the Migration Act was
valid in circumstances where the visa came to be held rather than
granted as subsection 501(2) only permits cancellation of a visa
that has been granted .[94]

More recently, the full bench of the Federal
Court in the decision of Sales v Minister for Immigration and
Citizenship [2008] FCAFC 132 ( Sales ) affirmed that
subsection 501(2) of the Migration Act only permits cancellation of
a visa that has been granted or is deemed by express statutory
provision to be granted to a person.[95] A Transitional (Permanent) visa held
by virtue of the Migration Reform (Transitional Provisions)
Regulations of 1994 is not granted, nor deemed to be granted,
and therefore cannot be cancelled pursuant to subsection
501(2).

Item 7 validates past
transitional visa cancellation decisions made under sections 501,
501A, 501B, 501C or 501F of the Migration Act. The proposed
amendment contained in item 5 will have retrospective application,
meaning the amendment will apply to purported decisions to cancel
transitional visas (temporary or permanent) once the item
commences.

Items 3-5 amend section 21 of
the Citizenship Act provide that the time for assessing certain
eligibility criteria is at the time the person makes the
application for Australian citizenship, and not when the Minister
makes a decision on the application.

Item 6 amends existing
paragraph 21(6)(d) of the Citizenship Act so that an applicant for
citizenship by conferral on the grounds that their parent is a
former Australian citizen is only required to be of good character
if they are aged 18 years or over at the time of application. This
is consistent with other provisions of the Citizenship Act that
only require applicants aged 18 years and over to meet the good
character requirement.[96]

Items 17-18 make minor
amendments to items 5B and 7 of Schedule 3 of the Australian
Citizenship (Transitionals and Consequentials) Act 2007 in
relation to the Minister s discretion over residence requirements
under subsections 22(5), 22(6) and 22(11) of the Citizenship Act.
Item 19 validates past decisions taken in respect
of subitems 5B(1) or 7(2) of Schedule 3 since the Australian
Citizenship (Transitionals and Consequentials) Act commenced
(1 July 2007).

Items 1-2 of Schedule 5 amend
existing paragraphs 16(2)(c) and 16(3)(c) so that stateless persons
(persons who have not been a national or a citizen of any country)
do not have to satisfy the Minister that they are of good character
as is presently required.

Items 3-5 amends existing
provisions to provide that some general eligibility criteria must
be satisfied not only at the time the Minister makes a decision on
the application, but also at the time the application is lodged. In
contrast, Item 7 provides that the relevant time
for assessing the eligibility of Stateless persons to become
Australian citizens pursuant to existing subsection 21(8), is at
the time the Minister makes a decision on the application, and not,
as is currently the case, when the application is lodged.

Item 8 amends paragraphs
21(8)(d) and (e) to change the eligibility criterion for stateless
persons born in Australia. Under the proposed amendments, a
Stateless person will satisfy one of the general eligibility
criteria if they are not entitled to acquire the nationality or
citizenship of a foreign country.

The Human Rights and Equal Opportunity
Commission (HREOC) has previously argued that the criterion
currently contained in subsections 21(8)(d) and (e) of the
Citizenship Act that a stateless person does not, at the time the
person made the application, have reasonable prospects of
acquiring the nationality or citizenship of a foreign countryand has never had such reasonable prospects, was an
additional condition not permitted by the 1961 United Nations
Convention on the Reduction of Statelessness (the Statelessness
Convention).[97]
This view was shared by Professor Kim Rubenstein who considered
that,

Section 21(8) regarding statelessness mirrors
the previous Act's provisions, but (8)(c)'s breadth may make it
inconsistent with the International Convention for the Reduction of
Statelessness to which Australia is a signatory.[98]

Article 1.2 of the Statelessness Convention
lists four grounds upon which an application for citizenship may be
validly refused. The grant of citizenship may be conditional upon
the person concerned always having been stateless.[99] In HREOC s view, this means that
a person may be ineligible for citizenship if they have
actually acquired the nationality of another country.
HREOC asserts, it does not permit an exception where the person has
or had reasonable prospects of acquiring another
nationality .[100]

It is not clear why the language of the
Convention has not been adopted in the Bill (i.e. always have been
stateless ). To do so would arguably negate any concerns that the
proposed amendment may not be entirely consistent with Australia s
obligations under the Statelessness Convention. To shift the focus
from grant to a question of entitlement may also present
difficulties with interpretation. For instance, if a country
retains even a small element of discretion to reject an application
for citizenship, would it not be inaccurate to conclude that such a
person is entitled per se to that country s citizenship?
Similarly, a person might be entitled to acquire the citizenship of
another country but as a result of not having taken the necessary
steps to acquire it, may nonetheless remain stateless. Under the
proposed amendment such a person would presumably not be eligible
to become an Australian citizen, though under the Statelessness
Convention, such an individual would ipso facto satisfy
the precondition that they have always been stateless and therefore
be deserving of national protection.

Items 12-13 amend existing
subsections 24(2) and 24(4C) respectively to remove the Minister s
discretion to refuse a Stateless person becoming an Australian
citizen who has nonetheless satisfied the criteria contained in
proposed subsection 21(8) of the Citizenship Act. Consequential
amendments are also made to proposed section 24 which confirms that
Stateless persons may nevertheless have their application refused
on the basis that they have been convicted of a national security
offence or have been convicted of an offence for which they have
been sentenced to a period of imprisonment of at least five
years.

Item 15 repeals existing
paragraph 34(3)(a) and inserts proposed paragraph
34(3)(a) which provides that where a person would become
stateless if their citizenship were revoked, the Minister must not
revoke that person s citizenship if after lodging the application,
the person has only been convicted of a serious offence (an offence
for which they have been convicted and sentenced to death or to a
serious prison sentence). This amendment will ensure that the
Citizenship Act is consistent with Article 8 of the Statelessness
Convention which permits a State to deprive a person of his or her
nationality in circumstances where the person would become
stateless, where the nationality has been obtained by
misrepresentation or fraud.[101]

[12]. Explanatory
Memorandum, p. 7. The same procedure in the context of the RRT is
outlined at p. 12.

[13]. As noted in
Jillian Segal, President of Administrative Review Council, Letter
to the then Department of Immigration and Multicultural Affairs:
Proposed amendments to the Migration Act, 31 October 2006,
p. 2.

[14]. Proposed
sections 368A and 430A of the Migration Act. The proposed
formulation for notification of decisions contained in Schedule 1
of the Bill closely resembles the statutory formulation that
applied prior to the commencement of the handing down procedure on
1 June 1999, though the Migration Act at that time did not contain
a provision stating when a decision was taken to have been
made.

[16]. See
subsections 368D(2) (relating to the MRT) and 430D(2) of the
Migration Act (relating to the RRT). There is currently no
provision stating when a decision of a person in immigration
detention is taken to have been made , however, the Courts have
inferred that such a decision is made when the decision is
finalised, as evidenced by the date of signing by the Presiding
Member: SZJHK v Minister for Immigration and Citizenship
[2007] FMCA 248, per Nicholls FM at 35.

[19]. The doctrine
of functus officio is a description or consequence of the
performance of a function having regard to the statutory power or
obligation to perform that function. The effect of the application
of the doctrine is that once the statutory function is performed
there is no further function or act for the person authorised under
the statute to perform: R v Moodie; Ex parte Mithen (1977)
17 ALR 219 at 225; Comptroller-General of Customs v Kawasaki
Motors Pty Ltd (1991) 32 FCR 219 at 225.

[27]. Section 75 of the Constitution relevantly states
that the High Court has original jurisdiction in all matters:

(iii) in which the Commonwealth, or a
person suing or being sued on behalf of the Commonwealth, is a
party,

(v) in which a writ of Mandamus
[directing that an officer do a certain action] or prohibition
[preventing an officer from doing a certain action] or an
injunction [halting a current or future action for a period of
time] is sought against an officer of the Commonwealth.

[47]. Proposed new subsection 169(4) defines
international passenger cruise ship as a ship that has sleeping
facilities for at least 100 persons (other than crew members), and
is being used to provide a service of sea transportation of persons
from a place outside Australia to a port in Australia, and that
service is provided in return for a fee payable by persons using
the service, and is available to the general public.

[48]. Therefore the Legislative Instruments Act
2003 would not apply as the decision would be administrative
rather than legislative in character.

[49]. Enforcement visas are granted to persons
suspected of being illegal foreign fishers and to persons suspected
of being environmental offenders by operation of law when fisheries
or environment officers take enforcement action under the
Fisheries Management Act 1991, the Torres Straight
Fisheries Act 1984 or the Environment Protection and
Biodiversity Conservation Act 1999: Explanatory Memorandum,
Migration Legislation Amendment Bill (No.1) 2008, p. 48.

[98]. Professor Kim Rubenstein, Submission No. 65,
Senate Legal and Constitutional Legislation Committee,
Provisions of Australian Citizenship Bill 2005 and Australian
Citizenship (Transitionals and Consequentials) Bill 2005 ,
2006, p.3. Note the requirement that a person must not at the time
of making the application have reasonable prospects of acquiring
the nationality of a foreign country was previously contained in
subsection 21(8)(c) of the Australian Citizenship Bill
2005.

[99]. Convention on the Reduction of
Statelessness, opened for signature 30 August 1961, 989 UNTS
175 (entered into force 13 December 1975), Article 1, paragraph
2(d).

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